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ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 9,2010

Mr. David M. Swope


Assistant County Attorney
Harris County District Attorney's Office
1019 Congress, 15th Floor
Houston, Texas 77002-1700

0R2010-03375

Dear Mr. Swope:

You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 ofthe Government Code. Your request was
assigned ID# 372732 (C.A. File No. 09GEN2458).

The Harris County Sheriffs Office (the "sheriff') received a request for information
contained in any media that comprises the administrative investigation that resulted in the
disciplining of the requestor. You claim that the submitted information is excepted from
disclosure under section 552.108 of the Government Code. We have considered the
exception you claim and reviewed the submitted information. We have also considered
comments submitted by an attorney representing the requestor. See Gov't Code § 552.304
(interested party may submit written comments regarding availability of requested
information).

Initially, we address the requestor's attorney's argument that the sheriff failed to meet its
obligations under section 552.301 of the Government Code. This section prescribes
procedures that a governmental body must follow in asking this office to decide whether
requested information is excepted from public disclosure. Section 552.301(b) requires the
governmental body to ask for the attorney general's decision and state the exceptions to

POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL:(512)463-2100 WWW.OAG.STATE.TX.US


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Mr. David M. Swope - Page 2

disclosure that it claims not later than the tenth business day after the date of its receipt of
the written request for information. See Gov't Code § 552.301(b). Section 552.301(d)
requires the governmental body to provide the requestor with a written statement that the
governmental body wishes to withhold the requested information and a copy of the
governmental body's written communication to the attorney general asking for a decision not
later than the tenth business day after the date of its receipt of the written request for
information. See Gov't Code § 552.301(d).

The sheriff received the request for information on December 18, 2009. 1 The sheriff was
required to request a decision from this office no later than January 6, 2010. The sheriffs
brief requesting a decision was submitted to and received by this office on January 6, 2010.
Accordingly, we find the sheriff complied with section 552.301(b). Additionally, we note
the sheriffs brief contains a notation that the requestor was copied on the brief on that date.
Whether the requestor was actually provided with a copy of the sheriff s brief on
January 6,2010 is a question of fact. This office is unable to resolve disputes of fact in the
open records ruling process. Accordingly, we must rely upon the facts alleged to us by the
governmental body requesting our opinion, or upon those facts that are discernable from the
documents submitted for our inspection. See Open Records Decision No. 522 at 4 (1990).
The sheriff s brief contains a notation that the requestor was copied on its written statement
seeking a decision from this office on January 6, 2010. Therefore, we conclude that the
sheriffcomplied with the procedural requirements of section 552.301 (d) and will address its
arguments against disclosure.

Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement


agency or prosecutor that deals with the detection, investigation, or prosecution of
crime ... if: (2) it is information that deals with the detection, investigation, or prosecution
of crime only in relation to an investigation that did not result in conviction or deferred
adjudication." Gov't Code § 552.108(a)(2). A governmental body claiming
section 552.1 08(a)(2) must demonstrate that the requested information relates to a criminal
investigation that has concluded in a. final result other than conviction or deferred
adjudication. See id. §§ 552.108(a)(2), .301(e)(l)(A) (governmental body must provide
comments explaining why exceptions raised should apply to information requested); Ex
parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Section 552.108(a)(2) is not applicable to records
of an internal affairs investigation that is purely administrative in nature and did not involve
the investigation or prosecution of crime. See City a/Fort Worth v. Cornyn, 86 S.W.3d 320
(Tex. App.-Austin 2002, no pet.) (section 552.108 not applicable to information police
department holds as employer); Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ.
App.-El Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable
to internal investigation that did not result in criminal investigation or prosecution). Upon
review, the submitted information reflects that it was generated as part of an

1The sheriff states December 24 and 25,2009 and January 1,2010 were Harris County holidays.
Mr. David M. Swope - Page 3

. .
administrative investigation conducted by the sheriff. You do not provide any arguments
explaining how the internal investigation resulted in a criminal investigation or prosecution.
Accordingly, the sheriff may not withhold any portion of the submitted under
o
section 552.1 8(a)(2) of the Govermnent Code.

Section 552.101 ofthe Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial decision" and
encompasses information made confidential by statute. 2 Gov't Code § 552.101. This section
encompasses laws that make criminal history record information ("CRRI") confidential.
\ CRRI generated by the National Crime Information Center or by the Texas Crime
Information Center is confidential under federal and state law. Title 28, part 20 of the Code
of Federal Regulations governs .the release of CRRI that states obtain from the federal
govermnent or other states. Open Records Decision No. 565 at 7 (1990). The federal
regulations allow each state to follow its individual law with respect to CRRI it generates.
Id. Section 411.083 of the Govermnent Code deems confidential CRRI the Department of
Public Safety ("DPS") maintains, except DPS may disseminate this information as provided
in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083.
Sections 411.083(b)(l) and 411.089(a) authorize a criminal justice agency to obtain CRRI;
however, a criminal justice agency may not release CRRI except to another criminal justice
agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in
chapter 411 of the Government Code are entitled to obtain CRRI from DPS or another
criminal justice agency; however, those entities may not release CRRI except as provided
bychapter411. See generally id. §§ 411.090- .127. Similarly, any CRRI obtainedfromDPS
or any other criminal justice agency must be withheld under section 552.101 of the
Govermnent Code in conjunction with Government Code chapter 411, subchapter F. See id.
§ 411.082(2)(B) (term CRRI does not include driving record information). Accordingly, the
sheriff must withhold the CRRI we have marked under section 552.101 of the Government
Code in conjunction with chapter 411 of the Government Code and federal law.

Section 552.101 also encompasses the doctrine of common-law privacy, which protects
information if (1) the information contains highly intimate or embarrassing facts, the
publication of which would be highly objectionable to a reasonable person, and (2) the
information is not oflegitimate concern to the public. Indus. Found. v. Tex. Indus. Accident
Bd., 540 S.W.2d 668,685 (Tex. 1976). To demonstrate the applicability of common-law
privacy, both prongs of this test must be demonstrated. Id. at 681-82. The type of
information considered intimate and embarrassing by the Texas Supreme Court in Industrial
Foundation included information relating to sexual assault, pregnancy, mental or physical
abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders,
attempted suicide, and injuries to sexual organs. Id. at 683. Additionally, this office has

2The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987),470 (1987).
Mr. David M. Swope - Page 4

found that personal financial information not relating to the financial transaction between an
individual and a governmental body is generally excepted from required public disclosure
under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). We
have marked information that must be withheld under section 552.101 in conjunction with
common-law privacy.

Section 552.130 ofthe Government Code excepts from disclosure information relating to a
motor vehicle operator's or driver's license or permit or a motor vehicle title or registration
issued by an agency of this state. See Gov't Code § 552.130(a)(1)-(2). Accordingly, the
sheriff must withhold the Texas driver's license and motor vehicle information we have
marked under section 552.130 of the Government Code. 3

In summary, the sheriff must withhold the CHRI we have marked under section 552.101 of
the Government Code in conjunction with chapter 411 ofthe Government Code and federal
law. The sheriff must also withhold the information we have marked under section 552.101
of the Government Code in conjunction with common-law privacy. The sheriff must
withhold the information we have marked under section 552.130.· The remaining
information must be released to this requestor. 45

This letter ruling is limited to the particular information at issue in this request and limited
to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination.regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For more information concerning those rights and
responsibilities, please visit our website at http://www.oag.state.tx.us/open/index orl.php,
or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public

3We note this office recently issued Open Records Decision No. 684 (2009), a previous determination
to all governmental bodies authorizing them to withholdten categories ofinformation, including Texas driver's
license and license plate numbers under section 552.130 of the Government Code, without the necessity of
requesting an attorney general decision.

4We note the information being released contains confidential information to which the requestor has
a right of See Gov't Code § 552.023 (person's authorized representative has special right of access to
information that relates to the person and that is protected from disclosure by laws intended to protect person's
privacy interests). If the sheriff receives another request for this particular information from a different
requestor, then the sheriff should again seek a decision from this office.

5The remaining information includes full and partial social security numbers not belonging to the
requestor. Section 552.l47(b) of the Government Code authorizes a governmental body to redact a living
person's social security number from public release without the necessity of requesting a decision from this
office under the Act.
Mr. David M. Swope - Page 5

information under the Act must be directed to the Cost Rules Administrator ofthe Office of
the Attorney General, toll free at (888) 672-6787.

Sincerely,


Assistant Attorney General
Open Records Division

LJH/jb

Ref: ID# 372732

Ene. Submitted documents

c: Requestor
(w/o enclosures)